Failure to detect foetal anomaly: Kerala gynaecologists, hospital slapped Rs 82 lakh compensation

A commission bench, comprising judicial members Ajith Kumar D. and Radhakrishnan K.R., was dealing with a complaint filed under section 12 of the Consumer Protection Act, 1986 by the patient and her husband against the private Kerala hospital and two doctors, alleging medical negligence leading to severe consequences for their child.

The complainants alleged that during the early days of pregnancy, the patient had consultations and scans at Cosmopolitan Hospital, revealing a healthy pregnancy. However, after shifting her treatment to the private hospital, further scans failed to detect a severe anomaly: the absence of lower limbs and hips in the foetus. This devastating discovery was made only after the birth of the child.

The complainants argued that the absence of limbs could have been detected through proper anomaly scanning, which was not performed. They contended that the negligence on the part of the hospital and doctors led to unimaginable suffering for their family.

On the other hand, the hospital and the gynaecologists (opposite parties), in their defence, contended that ultrasound scans, while useful, are not foolproof, and anomalies may not always be detectable due to various factors. They argued,

"The second opposite party (gynecologist) had conducted ultrasound scanning with due diligence and care and there was no negligence on his part in conducting sonological examination. Ultra sound creates a two dimensional image of a three dimensional baby and in prenatal testing, ultrasound results cannot be relied upon as 100% accurate and all congenital anomalies cannot be detected as it depends upon foetal position, liquor volume and several other factors. If the amniotic fluid around the foetus is less and movement of the foetus is decreased, the sensitivity of ultrasound diagnosis of any foetal anomaly will also be compromised. During the scanning no indication of any abnormality was noticed by the Cosmopolitan hospital. Non detection of congenital anomaly of bilateral lower limb deficiency on scanning cannot be due to any fault or failure on the part of the opposite parties since ultra sound is not a perfect depiction of the foetus and the scan result cannot be relied as 100% conclusive."

"The scanning were done as per the standard and protocol and if there is indication or suspicion a detailed anomaly scanning is usually suggested. As per the clinical examination there were no signs of abnormality. There was no negligence or lack of care on the part of the opposite parties. The second opposite party is having qualification of MD, DGO with 32 years experience in gynaecology and doing ultrasound scanning since 1992 and the third opposite party is having MBBS, DGO with 10 years experience as a consultant gynaecologist. The first opposite party is a well known hospital with specialist doctors and experienced medical staff with modern facilities, also famous for infertility treatment. The opposite parties would seek for dismissal of the complaint," they added.

However, the commission found that the standard anomaly scan, crucial for identifying foetal abnormalities, was not conducted as necessary. It noted;

"On examining these reports only two possibilities could be presumed. One is that the reports were issued without actual examination and the other, the second opposite party was carelessness in conducting the examination. Much reliance is placed on the earlier sonographic examination done from Cosmopolitan hospital that no abnormality was detected in that report. It is a report at the age of 10 weeks and 6 days to the foetus. As per the evidence on record development of the limbs cloud be seen only after 11 weeks of gestation. So no negligence could be attributed to the Cosmopolitan Hospital. After the scanning in that hospital multiple scans were carried out in the opposite party hospital, that too in the advanced stages of pregnancy. So, it is not worth to contend that the anomaly should have been detected by the Cosmopolitan hospital."

It relied on the expert opinion of the Head of the Department of Radio Diagnosis at Thiruvananthapuram Government Medical College Hospital, affirming that anomalies can be assessed effectively in the anomaly scan conducted during the 18th week of gestation. Disabilities, if present, can be ascertained at this crucial stage of development, as emphasized by the medical expert. The Commission further observed;

"The expert gave evidence that the first scan is intended to ascertain as to whether the foetus is in the uterus or in the tube, the possibility of abortion, the number of foetuses as single or more etc. The abnormalities could be assessed in the scan to be taken in the 18th week of gestation which is called as anomaly scan and the disability, if any, could be ascertained only at this stage. If the foetus has no limbs it could be seen in this scan. In the anomaly scan the doctor has to report the fact as to whether the foetus bears 12 bones or not and also to report if the foetus has got any defects to the heart which is intended to enable the parents to decide as to the whether the pregnancy could be continued or terminated. This witness, after perusing Ext. A3 series opined that there is also vicarious liability to the hospital on account of the failure to note the disability of the baby in Ext. A3 series. This witness had given convincing evidence regarding the fault in the sonogram reports issued by the second opposite party. On the basis of the above evidence the complainants would submit that the negligence on the part of the opposite parties in not detecting the absence of lower limbs is a grave dereliction in providing medical treatment which made the life of the complainants and the unfortunate baby miserable."

Subsequently, the Commission concluded that the hospital and the gynaecologists were negligent in their duty of care and had issued inaccurate reports without conducting essential tests, causing immense hardship to the complainants and their child. It observed;

"On considering the evidence on record it could be seen that the third opposite party, the gynaecologist was negligent in not prescribing for anomaly scan and there was utter carelessness on the part of the second opposite party in issuing reports with measurements of the length of the femur of the foetus which actually had no lower limbs."

"Medical science has advanced much and the parents are now having the chance to prevent the birth of babies with inherent health issues. Admittedly the second complainant had started her treatment with the opposite parties before completion of twenty weeks of her pregnancy and if the inherent defect of the foetus was detected by the opposite parties through scanning they could have saved themselves and the poor baby from lifelong miseries. The act of the opposite parties in making the complainants believe that the baby to be born to them is healthy amounts to deficiency of service."

"So we have no hesitation to come to a conclusion that the opposite parties were negligent in rendering treatment to the second complainant which made the life of the complainants a misery. The opposite parties are jointly and severally liable to compensate the complainants and their unfortunate child by paying the compensation as deficiency of service is proved. These points are found in favour of the complainants."

The ruling stated that the complainants are entitled to compensation for the pain, suffering, and future needs of the child. They were awarded a total compensation of Rs. 50,00,000 (Rupees Fifty Lakhs), apportioned as Rs. 30,00,000 for the minor child and Rs. 20,00,000 for the complainants. Additionally, Rs 10,000 was awarded as litigation costs. The compensation was also subject to an 8% per annum interest rate from the date of filing the complaint (March 17, 2015), amounting to over Rs 82 lakh.

The Commission directed the hospital and the gynaecologists to deposit Rs. 30 Lakhs in a bank account in the name of the minor child and pay the remaining compensation to the complainants. Failure to comply within 30 days would result in an interest rate of 9% per annum until the payment is made.

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